Technical Standards

 

A. System design

B. Interconnections

C. Free cable service

D. Free modem connections

E. Emergency override

F. PEG quality-of-service guarantees

G. Technical assessment

H. Fiber requirements

I. Set-top attachments

With the rebuild of most cable systems in the country now complete, technical issues may seem less of a concern in franchise renewal negotiations. As Baller Herbst explain,

New or rebuilt cable systems are typically being designed to include a combination of fiber optic cable and coaxial cable in what is called a Hybrid Fiber Coaxial (HFC) system. Such systems generally include neighborhood nodes that serve 150 to 1,200 homes in order to increase the capability of providing unique programs and services to particular areas and expanding the overall capability of the system. Systems are also being designed to take advantage of digitization and compression that further expands system capacity.

In recent years, HFC systems have most often had design capacities of 550-750 MHz. Now, systems with capacities of 860 MHz to 1 GHz are emerging. This translates to 120 to 200 analog channels. A portion of the capacity of such systems is usually activated with programming in an analog format, with the remaining capacity reserved for digitization.

Thus Monterey's franchise includes a basic statement of "system functionality":

1. As rebuilt or upgraded and maintained, the Cable System must have reliability comparable to the reliability of those cable systems whose initial construction or rebuild was completed after 1998.

2. As designed, rebuilt, or upgraded and as maintained, the Cable System must be capable of being segmented to serve four hundred fifty (450) subscriber homes per node without additional fiber construction. In order to address subscriber demand for interactive services, the Grantee shall provide a minimum of 200 kbps per subscriber of interactive services in the downstream direction and 66 kbps per subscriber of interactive services in the upstream direction. (Section 7.1.B.)

The FCC has released technical standards for cable systems, and Andrew Afflerbach of Columbia Telecommunications Corporation has prepared an overview of modern cable technology, "Technical Background: Cable Architecture," which he presented at a USC Symposium on the Los Angeles Cable System in March 2004.

Even state-of-the-art cable systems need to be monitored, however, to ensure (among other things) that PEG channels enjoy the same technical advantages of their commercial counterparts; that the cable system is interconnected to adjacent systems (for the regional exchange of noncommercial programming, for example); that free cable and modem connections are offered to public and educational institutions; and that technical assessments take place periodically over the life of the franchise.

A. System design

St. Paul's franchise stipulates the technical standards for an upgraded system:

ARTICLE III. CABLE SYSTEM FEATURES

Section 300. Subscriber network.

300.(a). The company will upgrade the portion of the cable system primarily designed to provide cable services to residential subscribers as required by this Article III. The upgrade must be completed no later than thirty-six (36) months after the effective date of this franchise.

300.(a).(1). The upgraded system will use a fiber to the area node architecture (hybrid fiber-coax).

300.(a).(2). On average, the system will pass no more than one thousand two hundred (1,200) residential units per fiber node, and the plant from any node will not pass more than one thousand five hundred (1,500) residential units. On average, there will be no more than seven (7) active components in a cascade from the headend to the tap from which a subscriber is served, and no more than nine (9) active components in any cascade.

300.(a).(3). All active distribution electronics will be 750 MHz equipment, or equipment of higher bandwidth. All passive electronic components will be rated at 1 GHz or higher.

300.(a).(4). The cable system will be two-way activated upon completion of the system upgrade. This two-way activated capacity must be capable of supporting two-way high-speed Internet access via the cable system.

300.(a).(5). All power supplies will be inspected and replaced as necessary to provide reliable service; backup power supplies will be provided as described in more detail below.

300.(b). System functionality.

300.(b).(1). As designed, upgraded and maintained, the subscriber network must have a reliability comparable to the reliability of the highest quality cable systems whose initial construction or rebuild was completed after 1996. Reliability is measured in terms of number of outages, outage duration and number of subscribers affected by outages.

300.(b).(2). As designed, upgraded and maintained, the cable system must be adequately segmented to meet subscriber demand.

300.(b).(3). As designed, upgraded and maintained, the cable system must be able to deliver high quality signals that meet FCC technical quality standards.

300.(b).(4). The cable system must be designed, and must be maintained so that it has the upgradeability and flexibility to provide new services without the need for substantial new network construction.

300.(b).(5). Upon completion of the upgrade, all facilities and equipment will be installed (except customer premises equipment) so that the two-way active capability required by section 300(a)(4) is fully ready to operate upon subscriber request, with no further adjustments to the system.

300.(b).(6). The requirement that backup power be provided requires twenty-four-hour backup at the headend, three-hour rated backup at each node, three-hour rated backup covering coaxial amplifiers throughout the system, and six-hour rated backup for hub sites and optical transition nodes. Such equipment shall be constructed and maintained so as to cut in automatically upon failure of the commercial utility power; to revert automatically to a standby mode when alternating current power returns; and so that it complies with all utility and other safety regulations to prevent the alternate power supply from powering a "dead" utility line so as to prevent injury to any person. The term "rated" in this section refers to rated at 68 F. Backup power supplies will be monitored remotely to determine condition and when they have begun to operate due to loss of electrical power.

300.(b).(7). The system shall be capable of and shall deliver standard color and monochrome signals on all channels without noticeable picture degradation or visible evidence of color distortion or other forms of interference directly attributable to the performance of the cable system; and without noticeable sound distortion. The company shall use equipment generally used in high-quality reliable modern systems. This requires that equipment be installed at the headend to allow the company to cablecast signals in substantially the form received, without substantial alteration or deterioration (for example, the headend should include equipment that will transmit color video signals received at the headend in color, and stereo signals in stereo). Equipment must be installed so that all closed captioning programming received by the cable system shall include the closed caption signal so long as the closed caption signal is provided consistent with FCC standards.

A. 2. Palo Alto's technical standards:

SECTION 7. SYSTEM FACILITIES, EQUIPMENT, AND SERVICES

7.1. Cable System Design and Functionality

…

(1) The Cable System will use an optical fiber-to-the-node architecture or a technology and architecture providing equivalent functionality, capacity and reliability.

(2) TCI [now Comcast] intends to deploy fiber optic cables to nodes, which serve no more than 760 residential subscribers per node.

(3) Sufficient fiber-to-the-node shall be constructed to allow segmentation of the node with no significant additional construction such that no more than 300 homes are required to share the return (upstream) bandwidth allocated for two-way services.

(4) All active electronics replaced or added after the effective date of this Agreement will be 750 MHz-capable equipment, or equipment of higher bandwidth. All passive components replaced or added after the effective date of this Agreement will be 1 Gigahertz-capable equipment.

(5) The Cable System will be two-way activated upon completion of the Cable System rebuild and/or upgrade, and TCI will maintain two-way activation until or unless market demand for services using such two-way activation is insufficient economically to justify the cost of continued maintenance of two-way activation. TCI shall notify the City in writing in advance of any discontinuance of two-way activation.

(6) The Headend shall be supported with 24-hour backup non-interruptible power supplies. Each node shall have three-hour backup and hub sites and optical transfer nodes shall have six-hour backup power supplies. Such equipment shall be constructed and maintained so as to activate automatically upon a failure of utility service, to revert automatically to a standby mode when utility service is restored, and to comply with all utility and other safety regulations to prevent the alternate power sources from energizing a “dead” utility line in order to prevent injury to any Person. Power to the nodes will be monitored remotely.

B. Interconnections: Although the world of cable is fractured into thousands of local franchises, the actual operation of these systems (dominated by a handful of cable giants) is much more seamless. Comcast uses internal network connections to insert advertising that runs through service areas that span several distinct franchises, for example, but many PEG operations remain isolated from their peers just a few miles away. Recognizing this problem, several forward-looking franchises now insist on a variety of interconnections, linking educational institutional institutions in the area, for example, or fostering programmatic exchange among neighboring PEG channels.

Palo Alto's interconnection requirement:

7.2. Interconnection.

7.2.1 Current Interconnection with Educational Providers. TCI [now Comcast] shall continue to provide at least the level of interconnection that is in place on the effective date of this Agreement between the Cable System serving the Service Area and those communities contiguous to the Cable System on the effective date of this Agreement, including the DeAnza-Foothills Community College and Stanford University. If the City requests that TCI interconnect the Cable System with another Cable Communications System in order to provide locally produced educational access programming from other qualified educational facilities, TCI shall promptly enter into negotiations with that other Operator to determine, among other matters, where the interconnection shall be located, how costs for the interconnection will be shared, and a schedule for promptly completing the interconnections. In the event that the interconnection request is for an area served by TCI or its affiliate, TCI agrees to provide such interconnection so long as TCI (or its affiliate, as applicable) is reimbursed by the requesting party for TCI’s reasonable time and material charges or costs required to provide such interconnection.

7.2.2 Cooperation. The City understands that interconnection will require the cooperation of other Operators. The City shall use reasonable efforts to assist TCI in achieving the cooperation necessary to achieve the interconnection; provided, however, neither Party shall be liable to the other Party or its Affiliates if either Party’s efforts fail to achieve the necessary cooperation.

B.2. St. Paul's requirement for interconnection with neighboring cable systems:

Section 303. Interconnection with neighboring CATV systems.

303.(a). The company shall cooperate with any interconnection corporation, regional interconnection authority or city, county, state or federal regulatory agency which may be hereby established for the purpose of regulating, financing or otherwise providing for the interconnection of cable systems beyond the boundaries of the city.

303.(b). Upon city request, the company shall negotiate in good faith to interconnect the cable system with contiguous cable systems. Within three (3) months of a city request, the company shall report to the city the results of the negotiations. Where the company has negotiated in good faith with the cable operator of a contiguous cable system and where that operator refuses to interconnect, the city shall not penalize the company for such failure to interconnect. The city shall not require the company to interconnect where the company would be required to pay more than its pro-rata share of the interconnection costs based upon the number of basic subscribers served.

303.(c). Notwithstanding the above, except in the case of an unaffiliated cable operator of a contiguous cable system that refuses to interconnect, the company shall interconnect with all contiguous cable systems operated in the Minneapolis-Saint Paul metropolitan area no later than six (6) months after the effective date of this franchise, unless the city determines that a particular interconnection is not in the public interest. The interconnections shall permit:

303.(c).(1). The interconnected systems to exchange PEG programming intended to be carried on the subscriber network, including, by way of example and not limitation, live coverage of public meetings; and

303.(c).(2). Institutional network signals, including by way of example and not limitation, data transmissions so that governments on the interconnected systems can access remote databases, and video transmissions to permit teleconferencing.

B.3. Portland's interconnection requirements:

10.7 Interconnection with Ed-Net [a satellite-based, two-way audio, one-way video network, established as a state agency in 1989].

(A) Grantee will continue to provide the existing interconnection with Ed-net, accomplished indirectly through the Interconnect with the westside cable operator, as is in existence as of the effective date of this Franchise, until Ed-Net ceases operation.

(B) Grantee shall provide all necessary equipment at Grantee's Headend and all necessary Facilities on the Grantee's Cable System between Grantee's Headend and the Interconnection of the westside cable operator to accomplish the routing of Programming:

(1) from the Interconnection of the westside cable operator through the Headend onto any Access Channel on the Cable System and to the headends of other cable systems Interconnected with the Grantee; and

(2) from the Access Corporations, any program origination point on the Cable System, and the headends of other cable systems Interconnected with the Grantee, through the Headend to the Interconnection of the westside cable operator.

(C) Grantee will fully cooperate with Ed-Net personnel in identifying appropriate equipment to be used at the Ed-Net facility to accomplish Upstream and Downstream Channel transmissions.

10.8 Interconnection with other Cable Systems and Competitive Access Providers.

(A) Grantee shall continue without limitation all Interconnections in effect on the effective date of this Franchise.

(B) Grantee shall maintain Interconnections with all other major, contiguous cable systems in Washington, Multnomah and Clackamas Counties, Oregon and Clark County, Washington. The Interconnect Capacity shall provide the bi-directional capability to transmit Programming. The Interconnections shall be capable of receiving and delivering, among other things, Local Origination and PEG Access Programming produced by Grantee and other major, contiguous cable systems in Washington, Clackamas and Multnomah counties, Oregon and Clark County, Washington and Access Programming carried by the Grantee or those cable systems. The Grantee shall cooperate with the Jurisdictions in utilizing available Interconnect capacity to assist with video and data communications applications by local and state public and nonprofit organizations, including two-way applications between and among the Grantee, the Public Communications Network operated under the auspices of the Metropolitan Area Communications Commission, the Westside cable operator and Ed-Net. Upon prior approval by the Jurisdictions, the Grantee may credit Capital Costs of such Interconnection against funds set aside for Institutional Network extension under Section 9.1(C), pursuant to the procedures of that Section.

B.4. Monterey's requirements for interconnection with both affiliated and unaffiliated cable (and Open Video) systems in the area:

7.2 Interconnection.

A. Interconnection with TCI Systems [now Comcast].

The Grantee’s cable system (including the Institutional Network which shall be constructed pursuant to this Agreement) serving the City of Monterey and all TCI systems serving incorporated local governments within Monterey County and serving unincorporated Monterey County are served from a common headend and therefore function as a single cable system. The Franchisee shall take all necessary technical and construction steps to ensure that the communities which are served by that common headend are 100% interconnected for PEG access programming and institutional network (I-Net) services throughout the life of this Agreement. There shall not be a charge other than described in Section 7.3.H and the separate Institutional Network Agreement for the use of such interconnection (with TCI systems) for PEG access programming and I-Net services.

B. Interconnection With Other Systems Serving the City of Monterey and Other Adjacent Systems.

The Grantee shall take all necessary technical and construction steps to ensure that the Monterey cable system (as described above in Section 7) is interconnected with at least the following: all cable systems serving Department of Defense property which is located within the City of Monterey (Presidio of Monterey and the Naval Postgraduate School); all “willing” cable systems directly contiguous to the portion of the TCI cable system which serves the City of Monterey; and any Open Video System established pursuant to Section 653 of the Cable Act unless Federal Law changes and no longer requires such interconnection. This bandwidth shall provide the capability to transmit upstream channels and downstream channels in each direction, together with data, telemetry, audio, and other non-video signals using the INet and, when applicable, the residential network. The interconnection shall be capable of receiving and delivering, including but not limited to, PEG access programming and I-Net services to and from interconnected systems. If the City directs the Grantee to interconnect its cable system with another system, Grantee shall promptly enter into negotiations with such other system to determine where the interconnect shall be located and how costs for the interconnection will be shared, and to develop a schedule for prompt interconnections. The parties shall have one hundred twenty (120) days to reach agreement. For the purposes of this section, “willing cable system” means the franchised system of any cable operator who is otherwise willing to interconnect with Grantee’s cable system on fair and reasonable terms and who pays its own cost of installation and operation of facilities located within its own territory which are required for the interconnection.

C. Free cable connections: Recognizing the value of cable communications to schools, libraries, and other public institutions, many cities now require free cable connections as part of a community-service requirement.

Austin's service-to-the-community requirements:

SECTION 5. SERVICE TO COMMUNITY FACILITIES

5.1. Public Primary and Secondary Schools. If requested to do so by the school authorities, Grantee shall provide during the life of this Franchise each primary and secondary public school located in the Franchise area, and within one cable mile of the Cable System one (1) free cable television service outlet at the most popular service level. Each free outlet shall include a free Converter, if necessary, and maintenance thereof by Grantee. The hardware and the installation thereof for an internal video distribution system requested by primary and secondary public school authorities shall be provided at Grantee's cost. In addition, Grantee will continue to provide the existing free outlets and equipment (as set forth in Exhibit F).

Grantee will, at the school's request, provide an appropriate interface to any internal video distribution system in the school, so long as the school insures that such internal system complies with the FCC's signal leakage and signal quality standards and does not interfere with or adversely affect the system, including the upstream capacity. There will be no charge for cable service on any additional outlets in the school except for a pass through of any charge imposed on Grantee by a program supplier, and Grantee may impose a charge for equipment for additional outlets.

Grantee will provide each connected school with a free connection to a Time Warner on-line service for personal computers to the extent it is available on Grantee's Cable System and Transmission Network. Upon request each connected school will receive one free modem and free access to the Time Warner on-line service for use during the school year. Additional modems will be made available, upon request, at cost. Free access to the Time Warner on-line service will be provided through each such modem for use during the school year. In addition, the Grantee will sponsor a workshop to educate teachers about the Time Warner on-line service and to provide them with an opportunity for hands-on training.

5.2. Public Institutions of Higher Education. If requested to do so by the public institutions of higher education authorities, Grantee shall provide during the life of this Franchise, each campus of a public institution of higher education located within the City of Austin and located within two hundred (200) feet of Grantee's plant one (1) free cable television service outlet at the most popular service level. Each free outlet shall include if necessary a free Converter and maintenance thereof by Grantee. In addition, Grantee will continue to provide the existing free outlets and equipment (as set forth in Exhibit F).

5.3. City Facilities. Upon the request of City authorities Grantee shall provide during the life of this Franchise each municipal facility owned or operated by the City and located within the City of Austin and located within two hundred (200) feet of Grantee's plant one (1) free cable television service outlet at the most popular service level. Each free outlet shall include if necessary a free Converter and maintenance thereof by Grantee. All additional cable television hardware and the installation thereof requested by City shall be provided at Grantee's Direct cost. In addition, Grantee will continue to provide the existing free outlets and equipment (as set forth in Exhibit F)….

5.4. County Facilities. Upon the request of County authorities Grantee shall provide during the life of this Franchise each County facility owned or operated by the County and located within the City and located within two hundred (200) feet of Grantee's plant one (1) free cable television service outlet at the most popular service level. Each free outlet shall include if necessary a free Converter and maintenance thereof by Grantee. In addition, Grantee will continue to provide the existing free outlets and equipment (as set forth in Exhibit F).

C.2. St. Paul's requirement for free cable connections for designated sites:

Section 305. Free drops to subscriber network.

305.(a). In addition to providing the institutional network drops required by this franchise, the company shall:

305.(a).(1). Continue to provide a free drop to the subscriber network and free basic and expanded basic service to each public and private school, public library branch, police and fire station, community center and public building and to such other institutions as have been requested by the city, where the drop and service had been provided prior to December 1, 1997;

305.(a).(2). Provide a free drop to the subscriber network and free basic and expanded basic service to each public and private school, public library branch, police and fire station, community center and public building that requests a drop in writing, and to such other institutions as the city may reasonably request from time to time. Where a drop requested under this section 305(a)(2) would require the company to install a drop longer than four hundred (400) feet in length measured from the closest street, the company may charge the location for the cost of the labor and materials required to extend the drop beyond the four hundred (400) feet.

305.(b). The company is only required to provide a single free drop to the subscriber network, to a single outlet at a point within the location selected by that location. However, the location may extend the drop to multiple outlets and receive free basic and expanded basic service at each outlet so long as such extension does not result in any violations of leakage standards which the company is obligated to meet. A location that wishes to install multiple outlets may do so itself, or may contract with the company to do so.

D. Free modem connections: With the addition of high-speed Internet access to cable's offerings, some communities are now adding free cable modems to the operator's community service obligations.

Palo Alto requires such service for public schools and libraries:

7.11.6 Cable Modem Equipment. In deploying and offering any Internet access service after completion of the System rebuild, TCI [now Comcast] shall provide to all public schools and public libraries meeting the installation standard specified in Section 7.11.5 and without charge and without offset against the franchise fee owed to the City by TCI under this Agreement, one free cable modem and free unlimited access to both the Internet and TCI’s affiliated cable modem service.

D.2. Montgomery County requires free modem service for county agencies under its Supplemental Institutional Network Services provision (Exhibit F of the franchise agreement):

SUPPLEMENTAL INSTITUTIONAL NETWORK SERVICES

If the Franchisee provides commercial cable modem service, the County may request use of such service at no charge subject to the conditions specified below. The County recognizes that if its use of this service exceeds the conditions below, the County will initiate corrective action to preclude substantial negative impact on subscriber services.

The Franchisee shall dedicate 2 Mbps of bandwidth, on a per channel basis, for shared cable modem connectivity in a VLAN environment for County locations. The network, with the interconnection described below, will allow each location access to any other location within the Institutional Network and the FiberNet or within the subscriber network in a secure fashion without using the Internet.

The Franchisee shall provide, at no expense to the County, up to 100 cable modems for use by County agencies in connection with services provided under this Exhibit. These modems shall remain the property of the Franchisee and shall be returned to the Franchisee at the end of the Franchise term, or when no longer required by the County to provide connections to the Institutional Network or the FiberNet. The County shall bear the cost of each additional cable modem provided by the Franchisee for this purpose, and any related installation cost. Only cable modems approved for use by Franchise may be placed on the network.

E. Emergency override: Another acknowledgement of the near-ubiquitious nature of cable communications, a number of cities now require an emergency alert system to be built into the cable platform.

St. Paul's emergency override requirement:

300.(f). Throughout the franchise term, the company shall provide and maintain all equipment necessary and all capacity necessary to allow for an audio and visual override on all channels simultaneously for public emergency announcements by the city. This emergency override system must be designed so that it can be activated remotely by the city, or those authorized by the city to utilize the system. It is the city's responsibility to develop a plan for its use of this capability, and the company's responsibility to cooperate with the city so that the plan may be implemented. The company shall not be responsible for any action overriding channels that may conflict with federal, state or local law. The emergency override system must operate in a manner consistent with any emergency alert system that the company is obligated to provide under federal or state law.

E.2. Austin's emergency override requirement:

SECTION 24. EMERGENCY OVERRIDE

24.1. Emergency Override. The Grantee shall maintain systems, equipment, and procedures permitting preempting of the regular signal on all channels with emergency warning signals originating from the City of Austin Office of Emergency Management. The following stipulations shall apply, except where and to what extent they may be preempted by FCC regulations:

24.2. The Director of the Office of Emergency Management (OEM) shall determine when the Emergency Cable Override is to be activated in response to actual or impending emergency conditions.

24.3. The Grantee shall provide and maintain all equipment, systems, software, services, security provisions, and procedures required for a fully operational emergency cable override warning system in accordance with FCC rules. Any equipment necessary for activation of the system by the Office of Emergency Management shall be provided by the Cable Operator. Activation points shall be, at minimum, the Austin-Travis County Emergency Operations Center and one other backup point within the Austin area specified by OEM.

24.4. The cable override shall consist of audio and crawler text signals as required by the Federal Communications Commission rules governing the new Emergency Alert System (EAS).

24.5. The system shall be tested as determined by the Office of Emergency Management not more than monthly and not less than annually.

24.6. The Grantee shall cooperate fully with the Office of Emergency Management in all other matters pertaining to a functioning emergency cable override system.

F. PEG quality-of-service guarantees: Recognizing that cable's record of technical performance is far from spotless, some cities have incorporated quality-of-service guarantees in their franchise agreements.

Portland's franchise includes a provision designed to guarantee the quality of PEG signals:

7.9 Change in Technology. In the event Grantee makes any change in the Cable System and related equipment and Facilities or in Grantee's Signal delivery technology, which directly or indirectly substantially affect the Signal quality or transmission of Access Programming, Grantee shall at its own expense take necessary technical steps or provide necessary technical assistance, including the acquisition of all necessary equipment, to ensure that the capabilities of Designated Access Providers or Access Programmers are not diminished or adversely affected by such change.

G. Technical assessment: As a means of ensuring continued quality-of-service guarantees, a number of cities have built periodic technical assessments into their franchise agreements.

Portland's technology assessment requirement:

11.5 Technology Assessment/Early Termination.

(A) The Jurisdictions may notify Grantee on or after January 1, 2002 that the Jurisdictions will conduct a Technology and Compliance Assessment of Grantee's Cable System. Upon completion of the Technology and Compliance Assessment, the Jurisdictions may reduce the term of the Franchise by not more than four (4) years if the Jurisdictions find that Grantee has failed to successfully comply with the conditions set forth in this Section. The Jurisdictions shall notify Grantee of such findings, and the basis therefore, on or before March 31, 2003.

(B) The Jurisdictions may reduce the term of the Franchise pursuant to Section 11.5(A) if the Jurisdictions find:

(1) Grantee is not in substantial compliance with the material terms and conditions of this Franchise, including without limitation, Sections 5 through 14;

(2) (a) Grantee's technology and performance are inconsistent with current overall industry technical practices and range and level of services, existing and planned, in either the one hundred (100) largest U.S. cable systems that have been renewed or entered into since January 1, 1997, or in cable systems of more than 50,000 subscribers in the Portland MSA ("Survey"), taking due consideration of the then current practices and trends in the industry; and Grantee has not agreed to conform with industry or Portland metropolitan area practice in the five (5) year period between 2005 and 2010 by implementing improvements that have been demonstrated in the Survey to be commercially feasible. The Jurisdictions shall designate an expert or experts in the area of cable television to conduct the Survey and to assess, in full consultation with Grantee, and advise the Jurisdictions whether Grantee meets the requirements of Subsection 11.5(B)(2).

G.2. Montgomery County's mid-term technical review and "Upgrade Option" requirements:

6 (v) Mid-Term Technical Review:

(1) In addition to any periodic performance evaluations conducted pursuant to Section 6(r) herein, the County may also conduct a Mid-Term Technical Review of the Franchisee's Cable System once during the eighth and ninth year of the Franchise. The Franchisee shall fully cooperate and assist the County in conducting such review.

(2) Purpose: The purpose of the Mid-Term Technical Review shall be to evaluate the technical performance and capabilities of the Franchisee's System, including the Institutional Network, to determine whether to require a system upgrade to conform with technical improvements then commonly in use in the industry and available on systems in communities similar to the County. Subject to the provisions of this Section 6(s), the County may amend this Franchise Agreement to require the Franchisee to upgrade its System to incorporate technical improvements (the "Upgrade Option").

(3) County's Initial Review: To determine whether to invoke the Upgrade Option, the County shall first commence a review of the Cable System. Such review shall be conducted to enable the County to determine the following: (i) whether the Cable System should be upgraded or rebuilt; (ii) whether the Cable System's technical standards should be revised or improved; (iii) whether additional channels, equipment, facilities or support are required for public, educational and governmental use of the Cable System; and (iv) in general, whether any other changes in Franchise requirements should be made. Each determination under this paragraph shall be based upon the reasonable cable-related needs and interests of the County and the community, considering the costs to the Franchisee of meeting those needs and interests during the remaining term of the Franchise.

(4) Franchisee's Report: To assist in the County's initial review, the Franchisee shall, at the County's request, promptly submit a report to the County describing advances in cable technology nationwide, the potential benefits and disadvantages of those advances for consumers, and any plans or timetables the Franchisee may have for instituting such changes in technology.

(5) Public Hearings: If, after conducting its initial review, the County determines that a system upgrade may be warranted, it shall hold a public hearing to enable the general public and the Franchisee to comment and to present additional information.

(6) Upgrade Order: Following such hearings, the County shall determine whether the exercise of the Upgrade Option is warranted, based upon the reasonable cable-related needs and interests of the community, considering the costs to the Franchisee of meeting those needs and interests. The County shall issue a written order ("Upgrade Order") stating whether an upgrade is required, describing any upgrade to be implemented, and setting forth the basis for its decision. If an upgrade is required, the County shall set forth any relevant conditions.

(7) Franchisee's Response. Within sixty (60) days after the County issues the Upgrade Order, the Franchisee shall notify the County in writing whether it will comply with the Order. If the Franchisee does not so notify the County within sixty (60) days, the Franchisee will be deemed to have agreed to comply with the Upgrade Order.

(8) Amendment of the Franchise Agreement. If the Franchisee agrees to comply with the Upgrade Order, the parties shall amend this Franchise Agreement accordingly.

(9) Rejection of the Upgrade Option. If, however, the Franchisee is unwilling to comply with the Upgrade Order, the Franchisee shall, notify the County in writing, pursuant to Section 626 of the Cable Act, that it wishes to commence proceedings to renew the Franchise. If, at the time of such notice, more than three (3) years remain in the term of the Franchise, such notice shall be deemed, by mutual agreement, to shorten the term of the Franchise and this Agreement so that the Franchise and this Agreement shall terminate thirty-one (31) months from the date of the notice.

H. Fiber requirements: Although, according to Baller Herbst, "… the FCC has ruled that cities cannot require cable operators to utilize specific transmission technologies in upgrading or rebuilding their cable systems," some communities have successfully incorporated fiber-optic requirements in their franchises.

Montgomery County's fiber optic requirement:

6 (d) (2) The System backbone connections shall utilize fiber optic links (headend to hubs, hubs to hubs, and hubs to nodes). The System shall be designed and engineered with redundant paths between the headend and all hubs. Fiber optic nodes, segmented into distinct service areas, shall be constructed to serve coaxial copper cable passing no more than 1,500 dwelling units per node. Individual nodes may serve cable passing a de minimis number of dwelling units in excess of 1,500, provided there is no effect on the performance characteristics of the node.

 

H.2. Montgomery County's provision for additional fiber capacity:

6 (s) Additional Capacity: Franchisee will notify the County in advance of the installation of any fiber optic capacity not contemplated by the initial design of the System, so that additional fiber may be installed, at the County's expense, on an Actual Cost basis for government and institutional use. If the County wishes to request additional capacity, it may notify the Franchisee within 15 days of receipt of Franchisee's notification that the County will request additional capacity.

I. Set-top attachments: While most set-top devices offered by cable companies remain "black boxes" beyond the control or configuration of individual subscribers, some franchises underscore existing FCC's provisions concerning set-top interoperability and retail availability.

Montgomery County's set-top box attachments provision:

6 (9) Consumer Equipment For Lease or Sale. Subject to applicable law or regulation, as part of the System, the Franchisee shall, consistent with 47 C.F.R. ' 76.984 and 47 U.S.C. ' 543(d), offer every Subscriber, at uniform prices and regardless of the level of service taken, the opportunity to lease from the Franchisee or to lease or buy from others Converters (including digital converters), including any associated software, that allow Subscribers to view a program on one channel while taping a program on another channel. To the extent permitted by federal law, Subscribers shall have the right to attach devices to the Franchisee's System to allow them to transmit signals or service to video cassette recorders, receivers and other terminal equipment, and to use their own remote control devices and Converters, and other similar equipment, as long as such devices do not interfere with the operation of the Franchisee's System or the reception of any cable Subscriber, do not serve to circumvent the Franchisee's security procedures, or are not used in any manner to obtain services illegally. The Franchisee, at no additional charge, shall provide information regarding the cable system to Subscribers which will assist them in adjusting such devices so that they may be used with the Franchisee's System.